Medical Malpractice and Informed Consent
Here’s an important question:
When a doctor has a hunch that his patient would receive better care elsewhere, should he inform the patient and send him to another provider?
Research has shown that facilities that perform high volumes of a certain procedure do it better than those that perform the procedure less frequently. The difference is substantial, especially in surgeries of pancreatic and esophageal cancer, although “the experience of the surgeon and the whole medical team [is] important in any major cancer surgery.”
But on the disclosure issue, the medical profession is divided. No one says it’s okay to lie to a patient if the patient asks a direct question about volume of experience. But many doctors argue that they should not have to disclose their experience UNLESS the patient inquires. A “caveat emptor” standard.
Only a few courts around the country have decided whether doctors have a legal duty to inform patients that another doctor might have more skill and experience performing a planned surgery.
The case of Billy Boone case shows that surgeons’ skills and experience can make an important difference to the patient. The Maryland Court of Appeals decided that Boone had a legal right to know that his surgeon did not have extensive experience doing the ear surgery that Mr. Boone underwent. The decision is called Goldberg v. Boone, and it’s in the official case reports at 393 Md. 242, 900 A.2d 749 (2006).
Mr. Boone had an outpatient surgery in January 2000, to remove a benign growth from the mastoid cavity behind his left ear. Dr. Seth Goldberg, an ear nose throat surgeon, performed this surgery, called a mastoidectomy. Seventeen years before, Mr. Boone underwent the same procedure, in which another surgeon drilled out the same mastoid to remove a cheesy growth of skin debris called a cholesteatoma. Unknown to Boone, the surgeon had become lost at one point during the procedure and drilled a hole in the skull just above the mastoid, near the bottom of the brain’s temporal lobe. Nothing happened to his brain, but he was left with a small hole in his skull. Years later, Dr. Goldberg took some pre-op CT scan pictures of the bone anatomy and saw the pencil-sized hole in the side of the skull.
Dr. Goldberg’s surgery seemed uneventful, but after Boone went home, he developed a short-term memory problem that ruined his ability to do carpentry; worse, he developed a problem controlling his temper that unleashed itself at stressful moments on whoever happened to be nearby. Later, his neurologist explained to the jury that Boone’s outbursts could be traced to injury in the limbic system that modulates emotional response.
A CT scan showed that a new hole had been poked from the pre-existing skull defect into Boone’s brain. A small pocket of air could be seen in the temporal lobe, surrounded by a pool of blood. But it wasn’t just air in the brain – it was something slightly denser than air, likely surgical gelfoam which could have made its way there only if Dr. Goldberg had pushed it in to try to stop bleeding after he punched the first hole.
The key moment for Mr. Boone came not in the surgery but a month before, when he sat down with Dr. Goldberg to go over the planned operation. Goldberg never volunteered the key information: that with the hole in the skull from the prior surgery, his surgery would be that much more difficult, could even result in an injury to the brain, and Mr. Boone might benefit from consulting with someone who regularly did “revision mastoidectomies,” the technical term for this second go-round.
A general ENT doctor who advertised his specialty in facial cosmetic work like nose jobs – he named his professional corporation the “Aesthetic Facial Surgery Center of Rockville” – Goldberg only had done occasional revision mastoid surgeries. His operation on Boone proved he wasn’t up to the job. On the witness stand, Goldberg admitted he hadn’t discussed with Boone the hole in the skull, the chance of brain damage, or the availability of sub-specialists called neurotologists.
For Billy Boone, the jury’s vote in his favor, and the Court of Appeals’ affirmance of the award, gave him some vindication. For other patients, his win makes it easier to demand the information you need to make a sensible selection among surgeons.
Of course, if you asked Billy Boone, he would trade in legal vindication for a healthy brain any day. It’s too late for him, but not for the rest of us.
Consult with an Experienced Malpractice Attorney
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